Appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H. 8, from a decision of the Registrar under subsection 47(1) to suspend a driver’s licence
Between:
DC Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
Panel: Dr. Dimitri Louvish, Member Patricia Conway, Member
Appearances: For the Appellant: DC, self-represented For the Respondent: Sonia DeSantis, agent
Place and date(s) of hearing: By Teleconference October 29, 2019
A. OVERVIEW
The appellant appeals the Registrar’s decision of February 19, 2019 to suspend their driver’s licence. The licence was suspended under s. 47(1) of the Highway Traffic Act, RSO 1990 c. H 8 (the Act) because the appellant failed a functional driving assessment that took place on January 29, 2019
The appellant asked the Tribunal to make a confidentiality order with respect to the hearing. The Tribunal has considered the fact that there are intensely personal and private issues involved in this appeal, and therefore makes that order.
B. ISSUE
- The issue for determination is whether the appellant has a medical condition that is likely to significantly interfere with the appellant’s ability to drive safely.
C. DECISION
- After considering all the evidence we confirm the Registrar’s decision to suspend the appellant’s licence
D. LAW
Section 47(1) of the Act gives the Registrar the power to suspend a licence for “any sufficient reason”.
Section 14 (1) of Ontario Regulation 340/94 under the Act states:
a. The holder of a driver’s licence must not suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely.
Section 14(2) allows the Registrar to require a person to provide evidence satisfactory to the Registrar that they can drive safely, including reports of examinations and additional medical information.
Subsection 50(2) of the Act states that the Tribunal may confirm, modify or set aside the decision of the Minister.
E. EVIDENCE AND ANALYSIS
The Registrar’s case rests on the documentation it tendered in evidence. The first document is a police report of a collision in which the appellant was involved in September 2018. The report states the appellant was exhibiting driving issues that caused concern regarding their ability to drive safely. On receipt of this report, the Registrar informed the appellant that it was reviewing their driver’s licence and asked for a Medical Condition Report (MCR) from the appellant’s physician.
The resulting MCR dated October 31, 2018, stated that the appellant had physical limitations as a result of a medical condition and decreased concentration and alertness as side effects of medication. The report indicated that these might impact the appellant’s ability to drive safely. The MCR recommended that the appellant be required to undergo a functional driving assessment.
The Registrar requested that the appellant’s physician provide further information in a letter to the appellant dated November 16, 2018. The physician provided a further report on December 4, 2018, making the same recommendation.
The Registrar required that the appellant undergo a functional driving assessment. This was conducted on January 29, 2019. The report arising from the assessment stated that functional deficits were identified in the appellant’s driving and recommended that the appellant not drive.
The appellant testified that the medical reports of October 31 and December 4, 2018 contradicted medical reports the same physician had sent to the Registrar regarding the appellant’s medical condition and medications in 2013 and 2016. The appellant stated that there have been no changes in their medications or in their physical condition from 2013 to the present. The appellant tendered in evidence the 2013 medical report from the physician. That report states that the appellant’s medications have no effect on their ability to drive.
The appellant testified that the 2016 report from the same physician makes a similar statement. Although the appellant did not tender the 2016 report in evidence, stating that they no longer had the report, the Tribunal assumes that the Registrar must have the report in its files, since the purpose of the report was to inform the Registrar regarding the appellant’s ability to drive safely in 2016. The Tribunal also assumes that if the appellant’s description of the 2016 report were incorrect, the Registrar would have tendered that report as part of its case. The Registrar did not do this, nor did it suggest that the appellant’s evidence regarding the 2016 report was wrong. The Registrar did not refer to the 2016 report at all.. We therefore accept as true the appellant’s evidence on this point.
The Tribunal agrees that the 2013 report and the 2018 reports are very different. The Tribunal accepts the appellant’s submissions that the medication they take has not changed from 2013 to 2019. However, the Tribunal is not prepared to find that the 2018 MCRs are wrong on that basis. The impact of the medications on the appellant’s concentration and alertness may have changed over time. The Tribunal accepts physician’s observations in the 2018 MCRs that the medications might affect their ability to drive safely.
The appellant testified that on the day of the functional driving assessment, January 29, 2019, there was a heavy snowstorm and many accidents on the road. The appellant testified that while driving they kept to a low speed because of these conditions. The appellant said that they may have travelled across lane lines because swirling snow made it impossible to see the lane lines at times during the assessment. The appellant also stated that they were directed toward several roundabouts and did not know how to deal with them, not having encountered them before. The appellant testified that the person sitting beside them and directing them was impatient and shouted at them several times. The appellant testified that they believe that the functional driving assessment was not fair for these reasons, and ought to be disregarded.
The appellant’s description of the weather on January 29, 2019 was confirmed by the appellant’s witness, a relative by marriage. The witness also stated that the appellant contacted them after the functional driving assessment to express concern about the weather and distress about the shouting of the tester and the general conduct of the assessment.
While the Tribunal sympathizes with the appellant, the result of the functional driving assessment offers the Tribunal the most cogent and persuasive evidence of the appellant’s ability to drive safely at the time the Registrar made its decision to suspend the appellant’s licence. In the result, the appellant failed the assessment. The recommendation was that the appellant could not drive. In the face of this assessment, the Tribunal could not reasonably conclude, as the appellant asks us to, that “but for” the road conditions, their lack of familiarity with the vehicle and their lack of knowledge of roundabouts, and their distress at the conduct of the tester, they would have passed the assessment.
Based on the evidence in the 2018 MCRs and the results of the functional driving assessment, we are satisfied that at the time the Registrar made its decision to suspend the appellant’s driving licence the appellant suffered from a medical condition likely to significantly interfere with their ability to drive safely.
F. DECISION AND ORDER
- The Tribunal confirms the decision of the Registrar suspending the appellant’s driving licence.
LICENCE APPEAL TRIBUNAL
Dr. D. Louvish, Member Patricia Conway, Member
Released: November 12, 2019